May 2010

There currently are 104 judicial vacancies on the district (88) and circuit (16) levels.. Twenty-three judicial nominations await floor action. Some nominations were reported out of the Senate Judiciary Committee as far back as last November. Of the 23 nominations pending, 17 were reported by the Committee without dissent. Votes on three district nominees were expected on May 5.

Recent media attention has focused upon the impact of vacancies in the Southern District and the Western District of Texas, where four of six vacancies are in border-area courts that carry some of the highest caseloads in the country. The U.S. Attorney posts in all four of the Texas districts also remain unfilled.

There is a small window of time in the Senate for final action on pending judicial nominations -- between now and the startup of Senate confirmation hearings for the next Supreme Court justice. If the confirmation process is completed by the Congressional August recess, additional time will remain in September before Congress adjourns, likely in early October.

The Senate Judiciary Committee on April 29 approved three bills expanding broadcast camera coverage in the district and appellate courts, as well as the Supreme Court. The measures, which now go to the Senate floor, are:

S. Res. 339, A resolution to express the sense of the Senate in support of permitting the televising of Supreme Court proceedings (Sponsors: Specter, Kaufman, Cornyn, Feingold, Durbin, Klobuchar, Whitehouse, Schumer and Leahy)

The first measure, S. 657, the Sunshine in the Courtroom Act, introduced by Sen. Chuck Grassley (R-IA) is the most far-reaching in that it would expand coverage in the district and appellate courts (including the Supreme Court). It was approved on a 13-6 vote. An amendment offered by Sen. Ben Cardin (D-MD) that would have stripped the bill of authority for camera coverage of district court trial proceedings, failed.

The bill would preserve the current bar against camera access unless the presiding judge of the court permitted entry. It also authorizes the Judicial Conference to issue guidance on how and when cameras should be permitted entry and requires additional guidance form the Judicial Conference on how cameras shall obscure the identity of vulnerable witnesses. Specifically, the bill:

Authorizes the presiding judge of a U.S. appellate court (including the Supreme Court) or U.S. district court to permit the photographing, electronic recording, broadcasting, or televising to the public of court proceedings over which that judge presides, except when such action would constitute a violation of the due process rights of any party.

Directs: (1) a district court, upon the request of any witness in a trial proceeding other than a party, to order the face and voice of the witness to be disguised or otherwise obscured to render the witness unrecognizable to the broadcast audience of the trial proceeding; and (2) the presiding judge in a trial proceeding to inform each witness who is not a party of the right to make such request.

Authorizes the Judicial Conference of the United States to promulgate advisory guidelines to which a presiding judge may refer in making decisions regarding the management and administration of photographing, recording, broadcasting, or televising described in this Act.

Requires the Judicial Conference of the United States to promulgate mandatory guidelines which a presiding judge must follow for obscuring certain vulnerable witnesses.

Prohibits broadcast of conferences between attorneys and clients.

The other two bills, S. 446 and S. Res. 359, deal only with the Supreme Court and each were approved by a 13-6 vote. S. 446 would require coverage of its open sessions, unless a majority of justices decides by a majority vote on a case-by-case basis that coverage would violate the due process of one or more parties before the Court. The other bill expresses the sense of the Senate and urges the Supreme Court proceed to provide the same camera coverage as embraced in S. 446. Legal experts suggest that a Congressional dictate to the Supreme Court to televise its open sessions might breach the separation of powers doctrine and be unconstitutional; a Senate resolution seeks to avoid that confrontation.

Justice Stephen Breyer told Congressional lawmakers during an appropriations hearing earlier in April that the Judicial Conference was considering a pilot project to televise proceedings in the lower courts, but that the pilot would not include coverage of the Supreme Court.

A 2009 C-SPAN poll found that two-thirds of the country wanted TV coverage of the High Court.

In past Congresses, the House has approved cameras bills, but they have languished in the Senate, even after emerging from the Senate Judiciary Committee. The timing of Senate floor action is uncertain.

Under the proposed amendments, judges may depart from federal sentencing guidelines in order to refer offenders with alcohol and other drug problems to addiction treatment or other alternatives to incarceration.

In addition, the proposed amendments would change the Organizational Guidelines, which advise federal courts on how companies should be sentenced for any federal crime. Among other things, the Organizational Guidelines provide credit to any company that has an "effective compliance and ethics program." If a company is charged with a crime, that credit can result in a substantially lower fine or a substantially lower settlement agreement with the Department of Justice. The amendments would change the Organizational Guidelines in three ways. First, in very limited circumstances, the amendments allow a company to obtain credit for an effective compliance program even when one of its senior officials is involved in the misconduct. Second, the amendments clarify how a company with an effective compliance program may be expected to respond upon learning of misconduct. Finally, the amendments clarify that a court has significant authority to monitor companies as a condition of probation.

Access, fairness, cost, and delay in civil litigation in federal court will be the focus of a Conference, at the Duke University School of Law, May 10-11, 2010, sponsored by the Judicial Conference Advisory Committee on Civil Rules. The 2010 Civil Litigation Conference will present new data from several empirical studies on current litigation practice and proposals for improving civil litigation in the federal trial courts.